The Sixth Amendment guarantees individuals the right to a jury in criminal cases. Louisiana is one of two states where a non-unanimous jury can convict individuals of non-capital felonies. Specifically, Louisiana law requires that a minimum of 10 out of 12 jurors concur in judgment to deliver a verdict in felony cases. Over the course of six years in Louisiana, 40.4% of individuals who were convicted after a jury trial were convicted by non-unanimous juries. 11-1 juries decided 53% of these convictions, and 43% of the convictions were decided by 10-2 votes. Louisiana voters will have the opportunity to change this segregation-era law at the polls this year. Amendment 2 asks voters if they “support an amendment to require a unanimous jury verdict in all noncapital felony cases for offenses that are committed on or after January 1, 2019.”

Although slavery was abolished in the 1860’s, the systematic bondage of Black individuals persisted in the wake of the Reconstruction amendments. For example, Louisiana engaged in convict leasing, a system in which the state would “lease prisoners to private railways, mines, and large plantations” without offering them compensation for their forced labor. Thousands of Black individuals were subjected to convict leasing, which has been referred to as “slavery by another name.” To submit more Black individuals into its convict leasing scheme, Louisiana’s legislators used the criminal justice system to maintain control over newly freed Black men and women through implementing Black Codes—sets of laws that aimed to “criminalize black life.” Louisiana’s Black Codes, coupled with its non-unanimous jury system, made it easier to criminally convict Black individuals. These practices illustrate the primary means by which Louisiana sanctioned a criminal justice system that deliberately worked to imprison and perpetually oppress Black citizens.

Louisiana’s 1898 Constitutional Convention presented an opportunity for the state’s legislators, who all happened to be white men, to tackle restructuring its criminal law system in a post-Civil War era. Indeed, Louisiana’s non-unanimous jury law dates back to this 1898 Constitutional Convention, where racial animus played a prominent role in dictating the Convention’s agenda. Judge Thomas Semmes, the Chairman of the Convention’s Judiciary Committee, bluntly made the Convention’s goals clear: “We [are] here to establish the supremacy of the white race . . . and to perpetuate the supremacy of the Anglo-Saxon race in Louisiana.” Thus, even though some of the legislative enactments that surfaced from this Convention were facially neutral, the invidious intent was clear: the legislators crafted laws that aimed to suppress Black individuals . Specifically, the non-unanimous jury law sought to undermine and dilute Black individuals’ voting power on juries, thus denying them the ability to meaningfully participate in an important civic activity, and allowing Louisianans to more easily convict Black defendants of felonies.

When discussing the impact of non-unanimous decision making in criminal trials, one should consider the racial compositions within juries because often the views of jurors of color fall into the minority view amongst the twelve jurors. In a split jury system, jurors of color are more likely to have their views discounted or weighed less than those belonging to other jurors. This contradicts the spirit of the Supreme Court’s decision in Batson v. Kentucky, which held that “denying a person participation in jury service on account of his race” was unconstitutional. Although this decision focused on the selection of racial minorities to sit on juries, it is applicable in evaluating Louisiana’s non-unanimous jury law. Though racial minorities might be physically present in a body of jurors, their views are more likely to be excluded from the deliberation process. Thus, they are more likely to be denied the ability to meaningfully participate in jury service. As legal scholars Angela Allen-Bell, David Bienvenu, Frank Neuner, and Judy Perry Martinez argued, “[t]he non-unanimous jury laws in Oregon and Louisiana allow a prosecutor to accomplish through a seated jury what the law prevents during the jury selection process. This is so because the vote of one or two of the jurors can be ignored when votes are cast, having the same effect of just excluding one or two jurors during the selection process.”

Empirical data illustrates that unanimous juries tend to be more careful, thorough, and more likely to deliver a correct verdict. The American Bar Association has also adopted this stance. In the book Inside the Jury, three social scientists endeavored to evaluate the differences between a unanimous and non-unanimous jury system, and analyzed the step-by-step decision-making process both types of systems exhibit. Key findings about jury systems that follow majority (rather than unanimous) rule revealed that jurors take less time to reach and deliver a verdict, and that juries are more likely to practice a verdict-driven deliberation style rather than an evidence-driven one. It is disconcerting to know that laws like Louisiana’s allow, or even encourage, jurors to make swift decisions when someone’s liberty and livelihood are at stake. Research suggests that jury systems that require unanimity force jurors to examine evidence more closely, which enables them to reach a more accurate verdict based on facts rather than a simple desire to render a decision. Chiefly, juries governed by majority rules are less likely to engage in thoughtful and “painstaking analyses of the evidence,” which leads to a higher likelihood that these juries would reach an erroneous—and thus unjust—verdict. Louisiana has the second-highest rate of wrongful convictions amongst the fifty states. In 2017, the Innocence Project found that eleven of twenty-five exonerations in Louisiana “resulted from trials where non-unanimous juries were used.”

Furthermore, unanimous jury systems are also better at promoting the deliberative process because it encourages wide-ranging discussions amongst the jurors, and it compels the group to evaluate the minority’s views. Jurors who hold the dissenting view in a non-unanimous system lack the currency to persuade the majority to seriously examine and weigh their positions. Instead, the system muffles their voices and excludes them from the deliberation process. Furthermore, studies have shown that jurors within a non-unanimous system are more likely to take fewer polls amongst themselves when deliberating.

Louisiana’s current non-unanimous jury law undermines a crucial tenet of America’s criminal law system: your freedom and liberties cannot be abridged without proof that demonstrates guilt beyond a reasonable doubt. However, even in circumstances where two jurors have reasonable doubts about the evidence presented against a defendant, the non-unanimous jury law in Louisiana grants juries the authority to convict. Unanimous jury verdicts better guarantee a more comprehensive, accurate, and deliberative process. In a non-unanimous jury system such as Louisiana’s, there is less incentive to weigh and evaluate minority views and thus a greater likelihood that juries will deliver imprudent verdicts. By maintaining an outdated, segregation-era law designed by White supremacists, Louisiana remains an outlier in its application of the Sixth Amendment.

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We are now accepting submissions for Volume 55, Issue 2 of our journal. We invite you to submit any of your manuscripts that relate to the broad umbrella of civil rights and civil liberties through August 30.

Do you have any radical legal scholarship about building a better, fairer legal system/world? The Harvard Civil Rights-Civil Liberties Law Review is currently accepting submissions till Aug. 30, and we want to publish you! Articles should be < 30K words. https://t.co/DFj10kxQEJ

The Harvard Civil Rights-Civil Liberties Law Review is now accepting submissions for Volume 55, Issue 2 of our journal. We would like to invite you to submit any of your manuscripts that relate to the broad umbrella of civil rights and civil liberties.